RESELLER TERMS AND CONDITIONS
These Terms and Conditions (the “Terms and Conditions”) are incorporated by reference into any SOW or other Addendum by and between AudioEye®, Inc. (“AudioEye”) and Reseller (as defined in the SoW or otherwise referred to as a Client) to the extent referenced in such SOW or Addendum. The Terms and Conditions set forth the terms and conditions under which Reseller shall participate as a non-exclusive Reseller of AudioEye. Additional terms and conditions, including the Offerings that Reseller may purchase for resale, may be set forth in an Addendum (such as an SoW). Capitalized terms not otherwise defined in the text shall have the meanings ascribed to them in Section 14 or the SOW.
These Terms and Conditions contain a mandatory individual arbitration, class action waiver and jury trial waiver provision. The provision requires the use of arbitration on an individual basis to resolve disputes, rather than the use of jury trials or class actions. Review these Terms and Conditions carefully before signing the SOW or Addendum that incorporates these Terms and Conditions by reference.
1. Reseller Arrangements
During the Term, Reseller may purchase Offerings for resale as offered by AudioEye in its sole discretion through a Statement of Work. Any Offering shall be subject to the Standard Terms of Service which must be accepted prior to its installation and use. During the Term, Reseller will use commercially reasonable efforts to market and promote such purchased Offerings to Customers and ensure AudioEye has sufficient access to the Customer System to provide Offerings. Subject to Reseller’s compliance with these Terms and Conditions and Customer’s compliance with any Collateral Agreements and the Standard Terms of Service, AudioEye shall authorize Customers to access the Offerings as described in the applicable Collateral Agreement and as directed by Reseller solely for Customer’s internal business purposes. This authorization is non-exclusive and non-transferable. Notwithstanding anything to the contrary in the Agreement or any addendum, order or statement of work, in no event will Reseller have the right to offer or sell, and agrees not to offer or sell, any AudioEye offering, service or product to any city or county local government entities (whether incorporated or unincorporated) and such entities agencies, including municipalities, boroughs, towns, cities, special districts, counties and townships (the “Excluded Customer”) in US, Canada and Australia.
2. Payments; Taxes
Payment. Reseller will make required payments to AudioEye in accordance with the terms and conditions set forth in any Addendum. With respect to Reseller’s purchase of any Offering, Reseller shall pay all subscriptions, charges and fees (“Fees”) in US Dollars in accordance with the terms set forth in the applicable Addendum. All Fees are due upon invoice and shall be delinquent if not paid within thirty (30) calendar days of the date of the invoice. If Reseller fails to make any payment when due, then, in addition to all other remedies that may be available, AudioEye may impose interest on any past due amount owed to AudioEye at the rate of 1.5% per month, prorated for any partial months or, if lower, the highest rate permitted under applicable law. If failure to make payment continues for thirty (30) calendar days following written notice thereof, AudioEye may suspend or terminate access to any Offerings until all past due amounts and interest thereon have been paid.
Taxes. AudioEye Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature imposed by any regulatory body (“Taxes”). Reseller is responsible for paying all Taxes, excluding only taxes based on AudioEye’s net income. If AudioEye has the legal obligation to pay or collect Taxes for which Reseller is responsible under this Section, the appropriate amount shall be invoiced to and paid by Reseller unless Reseller provides AudioEye with a valid tax exemption certificate authorized by the appropriate taxing authority. In any circumstance in which AudioEye collects Tax amounts that are lower than required, AudioEye retains the right to collect the difference between the amount collected and the tax liability.
3. AudioEye Obligations
Additional Right; Complementary Product Usage. AudioEye hereby grants to Reseller during the Term a limited, non-transferable, nonsublicenseable, non-exclusive right to access our Offerings to develop an interface to create operability between any Reseller products and the Offerings. AudioEye may grant, but is not required to grant, Offerings to Reseller at no charge for the sole purpose of permitting Reseller to provide Customers technical and customer support, provided, however, (i) Reseller shall agree to the Standard Terms of Service relating to each of the Offerings and (ii) notwithstanding anything in the Standard Terms of Service to the contrary, AudioEye can terminate such Offering at any time.
Privacy and Security. AudioEye shall comply with applicable privacy and cybersecurity laws, including if applicable the California Consumer Privacy Act and the General Data Protection Regulation, when collecting, maintaining, transmitting, or accessing personally identifiable information (“PII”), including that contained in Customer Data or Reseller Data, and maintain commercially reasonable administrative, technical, and physical safeguards to protect such PII. AudioEye shall not (a) modify Customer Data or Reseller Data except as necessary to provide any Offerings or at Customer’s request; (b) disclose Customer Data or Reseller Data except as required by law, as permitted by Customer or Reseller, as applicable, and as necessary to perform any Services, including to third parties who assist in the performance of the Services; or (c) access Customer Data except to provide any Offerings, prevent or address service or technical problems, or at Customer’s or Reseller’s request, as applicable.
4. Reseller Obligations
Offering Knowledge. Reseller shall ensure that its personnel are knowledgeable regarding the proper demonstration, use, and sale of the Offerings as well as the relevant specifications, features and advantages of the Offerings, and that its personnel comply with any quality standards regarding sales, service, and support that AudioEye may make available from time to time.
User Accounts. AudioEye will issue to Reseller, or at Reseller’s direction, to Customers, User Accounts for each of its Authorized Users. Reseller shall be, and shall ensure any Customer be, responsible for maintaining the security and confidentiality of User Accounts and only permit access by its Authorized Users. Reseller shall be solely responsible for any and all access and use of the Offerings that occurs using a User Accounts (including by Customer or its Authorized Users). Reseller shall require each Customer to restrict its respective Authorized Users from sharing User Accounts. Reseller agrees to promptly notify AudioEye of any unauthorized use of any User Account, or any other breach of security known to Reseller.
Privacy and Security. Reseller shall comply with applicable privacy and cybersecurity laws, including if applicable the California Consumer Privacy Act and the General Data Protection Regulation, when collecting, maintaining, transmitting, or accessing PII, including that contained in Customer Data, and maintain commercially reasonable administrative, technical, and physical safeguards to protect such PII. Reseller shall not (a) modify Customer Data except as necessary to market or promote the Offerings or at Customer’s request; (b) disclose Customer Data except as required by law, as permitted by Customer, and as necessary to market or promote the Offerings; or (c) access Customer Data except to market or promote the Offerings or at Customer’s request. Reseller shall ensure that (i) Reseller has full authority to provide AudioEye any Customer Data that Reseller so provides and (ii) AudioEye has full authority to use Customer Data in accordance with the terms of these Terms and Conditions.
Other Obligations. Reseller shall (a) not make any representations, warranties, guarantees or claims on AudioEye’s behalf or concerning any Offerings except as explicitly authorized in a written document provided by AudioEye to Reseller, (b) immediately give AudioEye written notice of any notice, complaint or claim concerning any data security breach, damage or other injury relating to AudioEye or the Offering, and (c) promptly give AudioEye written notice of any notice, complaint or claim received from a Customer relating to AudioEye or an Offering. Reseller shall agree to the Standard Terms of Service relating to the Offerings.
Terms of Collateral Agreement. Reseller will include the following provision in its Collateral Agreements.
If the Customer or any parent or affiliate receives any communication, or as a defendant is served with a complaint in any litigation (“Litigation”), alleging that the Customer’s website using the Offerings is not compliant with or in conformance with the Americans with Disabilities Act or any standard or level of Web Content Accessibility Guidelines (WCAG) (“Allegations”) or if the Customer enters into any agreement relating to the settlement of a dispute regarding Allegations, Customer will promptly notify AudioEye as to the receipt of such communication or complaint or entrance into such agreement. Such notification shall be directed to https://www.audioeye.com/request-legal-support-services and shall be accompanied by a copy of the communication or complaint, as the case may. In connection with any Litigation, none of the Customer or any parent or affiliate or employee of any such entity or Person may refer to AudioEye or the Offerings, including in any Litigation document filed with a court or arbitrator, without providing AudioEye the opportunity to comment on such reference.
Breach of Collateral Agreement. If Reseller learns of any breach of a Collateral Agreement, Reseller shall take prompt, commercially reasonable corrective action to remedy the breach and shall notify AudioEye in writing of the breach and corrective action taken. In addition, if a breach of a Collateral Agreement occurs that AudioEye believes may result in irreparable harm to AudioEye and/or third parties, Reseller shall as requested by AudioEye either (i) use commercially reasonable efforts to promptly obtain equitable relief relating to such breach or (ii) assign its rights under Collateral Agreement to AudioEye to permit AudioEye to seek equitable relief.
Reseller Conduct. Reseller shall (a) conduct itself in compliance with all applicable laws, rules and regulations, including, but not limited to, those relating to e-mail marketing and “spamming”; (b) not engage in any e-mail, other marketing or promotion, fax, broadcast, telemarketing or any other similar marketing methods with respect to AudioEye, online or offline, without the prior written consent of the AudioEye in each instance; (c) not use any “malware” or “spyware” (including, but not limited to, pop- up banners that hide banners that are displayed on a web site, icons placed beside keywords found in text that if clicked will take the visitor to another web site, or other similar practices or techniques); (d) not make any false, misleading or disparaging representations or statements with respect to AudioEye; and (e) not engage in any other practices which may affect adversely the credibility or reputation of AudioEye, including but not limited to, using any web site in any manner, or having any content on any web site, that promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age and/or any illegal activities or that violates any intellectual property or other proprietary rights of any third party.
5. Marketing Relationship
AudioEye may make available to Reseller marketing and/or promotional materials (“Marketing Materials”) relating to AudioEye or the Offerings in connection with the Program. AudioEye hereby grants Reseller a limited, non-exclusive, non-transferable, revocable at will license to use the AudioEye Marks and reproduce and distribute Marketing Materials for the sole purpose of marketing and promoting the Offerings and the relationship contemplated by these Terms and Conditions. Reseller shall not alter, amend, adapt or translate the Marketing Materials without AudioEye’s prior written consent.
Each Party may add links to one another's web sites advertising the relationship herein.
Reseller shall not use any AudioEye Marks (i) as part of Reseller’s corporate or trade name or any domain name, or (ii) in any way that is likely to cause confusion or mistake or is likely to dilute, tarnish or otherwise diminish the AudioEye Marks’ distinctiveness. Reseller shall comply with all marking requirements and branding guidelines as provided by AudioEye from time to time. Reseller shall not use, register or attempt to register in any jurisdiction any Mark that is identical to or confusingly similar to any of the AudioEye Marks or that incorporates any of the AudioEye Marks in whole or in confusingly similar part. Reseller shall not (i) challenge, or cause, induce, authorize, or assist any Person to challenge, the validity of the AudioEye Marks or AudioEye’s ownership, use or registration of, or rights in, any of the AudioEye Marks or (ii) take any action in derogation of AudioEye’s rights in the AudioEye Marks.
Except for any limited license or right expressly granted under these Terms and Conditions, nothing in these Terms and Conditions grant, by implication, waiver, estoppel, or otherwise, any right, title or interest in or to any Intellectual Property or the Offering.
6. Confidentiality
Each Party agrees not to disclose any Confidential Information of the other Party and to use Confidential Information solely in connection with its performance of these Terms and Conditions. For purposes of these Terms and Conditions, “Confidential Information” shall mean any Customer Data, Reseller Data, technical, product, source code, business, financial and other information provided by the disclosing Party whether or not labeled as confidential.
The receiving Party shall take reasonable measures to preserve the confidentiality and avoid the disclosure of Confidential Information. Such reasonable measures shall be no less than those the receiving Party employs to protect its own confidential information of like importance.
The disclosing Party agrees that the agreement not to disclose and to use Confidential Information solely in connection with its performance of these Terms and Conditions shall not apply to any information that: (i) is, or at any time becomes, a part of the public domain through no act or omission of the receiving Party; (ii) is independently discovered or developed by the receiving Party without use of Confidential Information; (iii) is rightfully obtained by the receiving Party from a third party without any obligation of confidentiality; or (iv) is already known by the receiving Party without any obligation of confidentiality prior to obtaining Confidential Information from the disclosing Party.
The receiving Party may disclose Confidential Information if made in response to a court or governmental agency order provided that notice is promptly given to the disclosing Party to the extent possible so that the disclosing Party may seek a protective order or engage in other efforts to minimize the disclosure. The receiving Party shall cooperate with the disclosing Party in seeking the protective order and engaging in such other efforts at the disclosing Party’s cost.
The receiving Party acknowledges that the disclosing Party shall have the right to take all reasonable steps to protect its Confidential Information including, but not limited to, injunctive relief and any other remedies as may be available at law or in equity.
Upon the disclosing Party’s request or upon termination of these Terms and Conditions (whichever occurs sooner), the receiving Party shall promptly destroy or deliver to the disclosing Party all documents, notes, or other embodiments of, reflecting, or derived from Confidential Information (including any copies thereof), provided, however, the receiving Party shall be permitted to retain copies of Confidential Information solely for archival, audit, legal or regulatory purposes so long as such copies remain subject to the obligations and restrictions contained in these Terms and Conditions.
7. Term and Termination
The term of these Terms and Conditions will commence on the applicable Effective Date and continue in full force and effect for a period of two years (the “Initial Term”). The term will automatically renew for consecutive one-year periods (each, a “Term”) unless either Party provides written notice of termination no later than 30 days prior to the end of the then current Term. Any obligations that by their nature survive termination, including without limitation payment obligations, shall continue to apply.
Either Party may terminate the Terms and Conditions and any underlying Addendum following provision of written notice if the other Party (i) commits a material breach of the Terms and Conditions or an Addendum, which breach, if capable of being cured, is not cured within 30 days of written notice; (ii) terminates or suspends its business; (iii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iv) becomes subject to any bankruptcy or insolvency proceeding that is not rescinded within 60 days.
Upon termination (i) all rights and licenses granted to a Party hereunder immediately cease; (ii) each Party must promptly remove all links to one another's web sites and cease using all marketing materials, Confidential Information, Intellectual Property and any other information or materials related to the Program, and (iii) each Party may take any and all actions necessary to disable the other Party’s participation in the Program. Reseller shall cease any and all use and display of the AudioEye Marks and the AudioEye Marketing Materials immediately upon provision of notice by AudioEye.
Notwithstanding anything to the contrary in the Terms and Conditions or any Addendum, AudioEye reserves the right to terminate, change or discontinue support for the terms of any Offering, provided, however, if such action impacts the terms of any previously purchased Offering, AudioEye will in its sole discretion either continue to comply with such terms until expired or offer a superior Offering at no additional cost. AudioEye reserves the right to reject any Customer or proposed Addendum without any liability to Reseller.
8. Non-Solicitation
Each of AudioEye and Reseller agrees that during the Term and for a period of one (1) year following the expiration of the Term it will not directly or indirectly solicit for employment or hire the employees of the other Party without the prior written consent of the other Party; provided, however, that the foregoing prohibition shall not preclude the solicitation or hiring by either Party of any individual who responds to a general solicitation or advertisement.
9. Relationship of Parties
The Parties are independent contractors and nothing creates any partnership (notwithstanding the use of the name “business partner”, “AudioEye partner” or similar derivation), joint venture, agency, franchise, sales representative, or employment relationship between the Parties. The relationship does not grant either Party any right, power or authority to enter into any agreement for, or on behalf of, the other Party.
Nothing in the Terms and Conditions is intended to restrict or prohibit a Party from marketing or selling any products or services to any actual or potential customers of the other Party, even if such products or services are similar to or competitive with one or more of the products or services marketed or sold by the other Party in connection with the Program. Each Party understands and specifically acknowledges that the other Party may, directly or indirectly, market or sell, various products or services that are similar to or competitive with one or more of the products or services marketed or sold by such Party in connection the Program(s) and that each Party may, at any time during or after the term of any Addendum, enter into relationships or arrangements with various third parties on terms that may be similar to those contained in the Terms and Conditions.
Reseller understands and specifically acknowledges that (i) any rights hereunder are non-exclusive, and (ii) that no purchase of an Offering is contingent on the delivery of any future functionality or features nor dependent on any oral or written statements made by AudioEye regarding any future functionality or features.
10. Representations & Warranties; Disclaimers
Each Party hereby represents and warrants to the other Party that (i) each Addendum (including these Terms and Conditions) has been duly and validly executed and delivered by such Party and constitutes a legal and binding obligation, enforceable against such Party in accordance with its terms and (ii) its acceptance of, and performance under, the Addendum and these Terms and Conditions shall not breach any agreement with any third-party or any obligation owed by it to any third party. AudioEye represents and warrants that it owns or has sufficient rights to the Offerings in order to grant the license and other rights contemplated by these Terms and Conditions.
For the avoidance of doubt, AudioEye provides no representations, warranties or guarantees with respect to compliance with the Americans with Disability Act, the Rehabilitation Act, Web Content Accessibility Guidelines or any law, regulation, guidelines or standards relating to accessibility. Any such representations, warranties or guarantees, if any, will be included in the terms of the Offerings to Customers.
The AudioEye Marketing Materials are provided on an AS IS and AS AVAILABLE basis, WITH ALL FAULTS and WITHOUT WARRANTY of any kind, and nothing contained in any AudioEye Marketing Materials or any documentation shall in any way be deemed a representation or warranty of AudioEye.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ASPECT OF ITS PERFORMANCE HEREUNDER OR ANY OFFERINGS, AND EACH PARTY EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE. EACH PARTY UNDERSTANDS AND ACKNOWLEDGES THAT THE PROGRAM(S) AND OFFERINGS MAY NOT SATISFY THE REQUIREMENTS OF IT OR ANY THIRD PARTY. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT ANY ASPECT OF ITS PERFORMANCE HEREUNDER, OR THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
11. Limitations of Liability/Disclaimers; Limited Remedies
NEITHER PARTY SHALL HAVE ANY LIABILITY WITH RESPECT TO ANY ASPECT OF ITS PERFORMANCE HEREUNDER, THE PROGRAM, SOFTWARE, SERVICES OR OFFERINGS, OR OTHERWISE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS, OR DATA) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
EXCEPT FOR FAILURE TO PAY ANY AMOUNTS DUE, EACH PARTY’S LIABILITY UNDER THESE TERMS AND CONDITIONS UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE SHALL BE LIMITED TO THE AMOUNTS PAID TO AUDIOEYE BY AFFILIATE (IF ANY) DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
In the event the Services are not performed in accordance with the terms of the applicable Addendum or a service level agreement (if any), Reseller shall notify AudioEye in writing promptly (but in no event later than thirty (30) calendar days) after performance of the affected Services. Reseller’s notice shall specify the basis for non-compliance with the Addendum. In such event, at AudioEye’s sole option, AudioEye shall either (i) re-perform the Services at no additional charge to Reseller, or (ii) refund to Reseller the applicable Fees for the affected Services.
12. Indemnification
Each Party agrees to indemnify, defend and hold harmless the other Party and its directors, officers, employees and agents from and against any and all claims, lawsuits, demands, damages, liabilities and expenses (including reasonable attorneys’ fees) or other losses (collectively, “Losses”) of any kind or nature whatsoever arising out of: (i) any breach of any representation or warranty or covenant made in these Terms and Conditions; (ii) willful acts or omissions of the indemnifying Party or (iii) any infringement or misappropriation of such Party’s services, products, software, activities or websites (an “Infringement Trigger”) of any Intellectual Property (an “Intellectual Property Infringement Claim”).
Each Party agrees that if it receives an, or becomes aware of a potential, Intellectual Property Infringement Claim, the non-infringing Party will permit the potentially infringing Party to either timely procure the right for the non-infringing Party to continue to use the Infringement Trigger or to replace or modify the Infringement Trigger to become non-infringing, provided such replacement or modification shall not substantially impair the value of such Infringement Trigger. If the potentially infringing Party is unable to procure the above referenced rights, or modify or replace the Infringement Trigger, the potentially Infringing Party may cause the non-Infringing Party to discontinue use of the Infringement Trigger.
With respect to any indemnified matter, each Party agrees to give the other Party prompt written notice of a claim or the commencement of the related action, as the case may be, and information and reasonable assistance, at the indemnitor expense, for the defense or settlement thereof. The indemnitor shall have sole control of the defense and settlement of such claim or related action, provided that the indemnitor shall not settle such claim or related action in a manner which imposes any obligation on the indemnitee without the prior written consent of the indemnitee. The indemnitee shall be entitled to engage counsel at its sole expense to consult with the indemnitor with respect to the defense of the claim and related action.
13. Insurance
Each Party shall maintain at all times, in full force and effect during the term of any Addendum: workers compensation insurance as required by law or regulation; employers’ liability insurance with a minimum of $1 million per claim and $2 million annually in the aggregate; and general liability insurance with carriers whose A.M. Best rating is at least A-, Class VIII. Reseller shall provide evidence of such insurance upon the written request of AudioEye.
14. Miscellaneous
Portals and Platforms. AudioEye may use a variety tools, including but not limited to its own- or third-party SaaS solutions or website portals, for managing its Offerings and/or relationships with Resellers collectively, “Management Tools”). Reseller shall not at any time, directly or indirectly, and shall not permit any of Resellers’ employees, consultants, contractors, agents, channel partners or other members of Reseller's networks that provide services and/or sell products on behalf of Reseller or individuals who are authorized by Reseller to access and use the Management Tools and who have been supplied user identifications and login credentials by Reseller (“Reseller Affiliate”), to (i) permit any third party to access or use the Management Tools except as permitted by AudioEye, (ii) copy, modify or create derivative works based on the Management Tools or any related documentation, (ii) rent, lease, lend, sell, license, sublicense, publish, frame, mirror or otherwise distribute any part or content of the Management Tools or any related documentation, (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Management Tools, in whole or in part, or (iv) access the Management Tools in order to (a) build a competitive product or service, or (b) copy any content, features, functions or graphics of the Management Tools.
Third Party Services. AudioEye may use the services of one or more third parties to deliver any part of the AudioEye Offerings, for example, Amazon Web Services and Google Tag Manager (the “Third-Party Services”). AudioEye will use commercially reasonable efforts to pass-through any warranties to the extent that AudioEye receives any for the Third-Party Services that it can provide to Reseller. Reseller agrees to comply, and shall use reasonable commercial efforts to cause its Customers to comply, with any acceptable use policies and other terms of any Third-Party Services that are provided or otherwise made available to Reseller from time to time.
Notices. Any notice required under the Addendum or SOW shall be given in writing and shall be deemed effective upon delivery to the Party to whom addressed. All notices shall be sent to the applicable address specified within the Reseller Management Tool or to such other address as the Parties may designate in writing. Any notice of breach hereunder shall clearly define the breach including the specific contractual obligation that has been breached.
Publicity. Reseller consents to AudioEye’s use of Reseller’s name, logo and trademarks for the sole purpose of marketing and promoting the relationship contemplated by these Terms and Conditions, including in press releases and other public statements.
Electronic Signature. Each Party agrees that clicking “accept”, “I agree” or words to that effect or their electronic signatures, whether via the Reseller Management Tool or on a written agreement, authenticates the terms and conditions of the underlying agreement or document and have the same force and effect as manual signatures by an authorized representative. To the extent the natural person is clicking “accept”, “I agree” or words to that effect or their electronic signatures is doing so on behalf of the Reseller, such natural person is representing that he or she has the full power and authority to bind the Reseller.
Currency. Unless otherwise specified in an SoW, all references to currency, monetary values and dollars set forth herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in United States dollars.
Entire Agreement; Amendment. These Terms and Conditions and any Addendums thereto shall constitute the entire agreement between the Parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the Parties with respect thereto. In the event of conflicting terms and conditions, the Terms and Conditions shall govern over the terms and conditions of any Addendum except to the extent such Addendum explicitly references a Section in these Terms and Conditions. Each provision of these Terms and Conditions are a separately enforceable provision. If any provision of these Terms and Conditions is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for these Terms and Conditions to remain in effect in accordance with its terms as modified by such reformation. The Parties agree that these Terms and Conditions and any Addendum cannot be altered, amended or modified, except by a writing signed by an authorized representative of each Party. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
Governing Law; Jurisdiction. These Terms and Conditions and the rights and obligations of the Parties shall be governed by and construed under the laws of the United States and the State of Arizona without giving effect to conflicts of laws rules or principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms and Conditions.
Arbitration Agreement with Class Waiver. AudioEye and Reseller agree that any dispute, claim, case or controversy (whether based in tort, contract, statute, regulation, ordinance, equity or any other legal theory) between us (a “Claim”) shall be exclusively resolved by binding arbitration on an individual basis rather than in court (the “Arbitration Agreement”). We each agree that we will assert Claims in arbitration only in our individual capacity, and not as a representative or member of any purported class. We each agree that we will not participate in any class, mass, collective, consolidated, private attorney general or other representative arbitration proceeding. Each Party agrees that the arbitrator has no authority to arbitrate Claims on a class-wide basis and shall not consolidate, combine, or jointly arbitrate Claims of more than one person in a single arbitration. The arbitration shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (“AAA”) under its rules. The number of arbitrators shall be one (1). The Parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the Parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the Parties shall request the AAA to propose five (5) arbitrators and each Party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the Parties’' rankings. The seat, or legal place of arbitration shall be Tucson, Arizona, United States. Notwithstanding the foregoing, either Party has the right to pursue equitable or injunctive relief in the state and federal courts located in Arizona, and each Party agrees to the exclusive jurisdiction and venue of such courts.
Export Requirements. Offerings may use software and technology that may be subject to the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 (“EAR”) and applicable export controls of other countries (collectively, “Export Controls”). Reseller represents and warrants that the AudioEye Offerings shall not be disclosed, and none of the underlying software or technology may be transferred, exported or re-exported, directly or indirectly, in violation of Export Controls (i) to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), (ii) to a Person organized or normally resident in an Embargoed Country, or (iii) to any Person on the list of denied parties or entity lists maintained by the U.S. Department of Commerce, Bureau of Industry and Security (“Restricted Persons”), the U.S. Department of Treasury, Office of Foreign Assets Control (“OFAC”) of specially designated nationals and blocked Persons list or to any Person owned or controlled by such Person (collectively, “Designated Nationals”). The lists of Embargoed Countries, Restricted Persons, and Designated Nationals are subject to change without notice. Reseller represents and warrants that it is not organized in, located in, owned or controlled by a Person normally resident in an Embargoed Country or Designated National. In addition, the Offerings may use encryption technology that is subject to licensing requirements under the EAR and Council Regulation (EC) No. 1334/2000. Reseller represents and warrants that it will comply strictly with Export Controls and assume sole responsibility for obtaining licenses as required under applicable Export Controls or from OFAC as required under the laws, regulations, and executive orders administered by OFAC (“OFAC Sanctions”). The obligations under this subsection shall remain binding on Reseller and shall survive termination of any relationship. In the event that Reseller, its directors, officers, employees, representatives, or agents has violated any applicable laws relating to Export Controls or OFAC Sanctions, such violation shall be a material breach of these Terms and Conditions.
Anti-Corruption; OFAC. Reseller represents and warrants that it will comply with all applicable importation, distribution, sales and marketing laws, all United States economic sanction laws, the U.S. Foreign Corrupt Practices Act (“FCPA”) and all local anti-corruption, anti-bribery laws and regulations (collectively “Anti-Corruption Laws”). Without limitation to the aforementioned, Reseller represents and warrants that in the performance of these Terms and Conditions it (i) will not, directly or indirectly, offer, promise or pay any money, gift or other thing of value to any person for the purpose of influencing official governmental actions or decisions in obtaining or retaining business and (ii) has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of AudioEye in connection with the performance of these Terms and Conditions. If Reseller learns of any violation of the above representations and warranties, it will promptly notify AudioEye of such violation. Reseller represents and warrants to AudioEye that none of (a) any Customer, (b) each Person owning an interest in any of its Customers or Reseller nor (c) any of their respective personnel are (x) currently identified on the Designated Nationals List maintained by OFAC nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States. In the event that Reseller, its directors, officers, employees, representatives, or agents has violated any applicable Anti-Corruption Laws, such violation shall be a material breach of these Terms and Conditions.
Waiver. No term or provision of these Terms and Conditions shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
Severability. If any provision of these Terms and Conditions is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
Assignment. Reseller shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under these Terms and Conditions without the prior written consent of AudioEye, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment, delegation, or transfer in violation of this Section is void. Subject to the foregoing, these Terms and Conditions is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. AudioEye may fully assign and/or subcontract its rights or obligations under these Terms and Conditions or any SOW provided that AudioEye remains responsible for work performed by its subcontractors.
Costs and Attorneys’ Fees. In any action to enforce these Terms and Conditions, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred, including such costs and attorneys’ fees incurred in enforcing and collecting any judgment.
Force Majeure. Except for payment obligations, neither Party shall be liable for any failure or delay in performance under these Terms and Conditions due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of these Terms and Conditions); or any other event beyond the reasonable control of the Party whose performance is to be excused.
14. Definitions
“Addendum” means (i) any amendment to these Terms and Conditions that references these Terms and Conditions or (ii) an SoW.
“AudioEye Marks” means any Marks owned or licensed to AudioEye.
“Authorized User” means an employees, consultant, contractor or agent with authorized access to a User Account.
“Collateral Agreement” shall mean any agreement (including any exhibit or statement of work) between Reseller and its end-user relating to any Offering.
“Customer” means a Person with whom Reseller enters into a Collateral Agreement relating to an Offering or who otherwise uses an Offering.
“Customer Data” shall mean any data provided by end-users to AudioEye (either directly or through a Reseller).
“Customer System” shall mean the Customer’s website or a website controlled or owned by Customer.
“Intellectual Property” shall mean any patent, copyright, Mark, corporate name, internet domain name or industrial design, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract relating to any of the foregoing, and any goodwill associated with any business owning, holding or using any of the foregoing.
“Marks” means any trademark, service mark, service name, brand name, brand mark, trade name, trade dress, logo, or other indicator of source, affiliation or sponsorship, whether registered or unregistered.
“Offering” shall mean any Software or Service offered or sold by AudioEye.
“Party” shall refer to either AudioEye or Reseller as applicable.
“Person” shall mean a natural person, partnership, association, corporation, trust or any other entity.
“Reseller Data” shall mean any data (other than Customer Data) provided by Reseller to AudioEye.
“Service” shall mean any service offered by AudioEye and as further described in a Purchase Order.
“Software” shall mean any software or “software as a service” product offered by AudioEye and as further described in an Addendum.
“SoW” or “Statement of Work” shall mean a statement of work or purchase order relating to an Offering and referencing these Terms and Conditions.
“Standard Terms of Service” shall mean the standard terms of service that all end-users (including Customers and Resellers) must agree to in connection with the Offerings which will be located at https://www.audioeye.com/terms-of-service or such other terms and conditions as the Customer and AudioEye may agree to in writing.
“User Account” shall mean an account with certain administrative rights relating to either an Offering or the Reseller Management Tool granted to an employee, consultant, contractor or agent.
